Power of stays

Published September 19, 2021
The writer is a litigator based in Islamabad.
The writer is a litigator based in Islamabad.

THERE is a power that the judges in Pakistan exercise that probably belongs to the realm of superheroes. They can freeze time. And not only for a day or two, but for years, and even decades. Injunctive and stay orders are the infamous magical devices. Land disputes, contractual transactions, tax recovery, business deals, government projects, you name it; there is little under the sun, that the courts in Pakistan cannot stay.

Stay orders have a huge significance in our legal system. This is the metric on which a lawyer and a judge is assessed. A good lawyer can get you a stay; a good judge is the one who grants you a stay. Meanwhile, status quo orders have a humongous potential of creating unjust situations. If X, for instance, forcibly occupies Y’s land, any attempts by Y to retrieve his property can be thwarted by X’s timely procurement of a stay order from the court. X may spend his entire life on encroached land. The actual case may not get resolved for decades, or ever.

But stay orders are a requirement in any legal system. Overzealous tax officials may have drastically miscalculated the things owed to Caesar, hell-bent on recovery, through means not entirely kosher. The government officials may have chosen a private contractor, in a non-transparent manner, who is an extortionist for the state, but highly beneficent towards the officials. A behemoth property tycoon may be salivating over your little piece of land, inching forward with his conquests of concrete. In theory, at least, stay orders can be issued to safeguard you, providing temporary respite, preserving what is yours. In practice, though, the little guy fares poorly in courts. Lawyers with an established network, with connections in the upper echelons of the judiciary, may be well disposed to procure such stays; the kind of lawyers the little guy can hardly afford.

Uncle Ben in Spiderman made popular the words, the way Voltaire, probably, could not: “With great power comes great responsibility”. In Pakistan, though, great power means no one dare ask you questions. On the hierarchy, a slightly lesser degree of that power is where questions may be asked, but answers may still need not be given.

Great power means no one dare ask you questions.

Providing answers for why a particular injunctive or status quo order, or for that matter any order, has been rendered, would require a judge to substantiate his conclusions. For an injunctive relief or a stay order, a standard has been laid out. There must be a prima facie case, that is, the legal and factual theory of the litigant seeking the stay, at a minimum, must make sense. The balance of convenience must be in his favour.

In other words, the grant of the stay order may not burden the other side more than the litigant seeking it. And, but for the order, the litigant has to show that he stands to be caused irreparable loss. Yet, in the status quo orders handed out routinely, there is but one line: the status quo be maintained until further order or next hearing. The rest is irrelevant. It often appears that intuition trumps the applicable legal tests.

Without even the bare application of this standard, judges exercise expansive powers, of, essentially, staying the course of history. Moreover, Daniel Kahneman, Olivier Sibony and Cass Sunstein’s research in their book Noise has shown that without the application of tests capable of formulation, there is a huge amount of ‘noise’ in decisions that are made repeatedly. This, essentially, means that like cases are not treated alike. Some judges may have a greater propensity to grant stays, and others not — a disparity across judges. Some judges may have much greater propensity to grant stays in particular matters, but not in others. And judges after a good meal, on a good day, may be overly lavish in bestowing smiles, and stays.

Whether relief will be given in court ought not to be so dependent on mere chance — on getting the right judge, at the right time.

In their interim relief applications, the lawyers are equally guilty of failing to formulate their arguments on the basis of this standard. They are additionally guilty of resorting to forum shopping for procuring stays. There is at least a perception that knowing the right court staff member can, at times, get you access to the judge of your choice.

A straightforward solution will do for now. There is a standard, already laid out, that the judges need to apply. The appellate courts, meanwhile, must be robust in revoking an injunctive or status quo order in ap­­peal, if any of the elements of this standard has not been addressed in the order below. With great power must come the attendant responsibility of not acting arbitrarily, and spelling out one’s conclusions.

The writer is a litigator based in Islamabad.

awahid@umich.edu

Published in Dawn, September 19th, 2021

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